Ralph Suny v. Commonwealth of Pennsylvania , 687 F. App'x 170 ( 2017 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-3517
_____________
RALPH SUNY,
Appellant
v.
COMMONWEALTH OF PENNSYLVANIA;
THE DISTRICT ATTORNEY OF THE COUNTY OF DELAWARE;
THE ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 2-12-cv-01469)
District Judge: The Honorable Jan E. DuBois
______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 19, 2016
______________
Before: SMITH, Chief Judge, McKEE and SHWARTZ, Circuit Judges.
(Filed: April 28, 2017)
_______________________
OPINION*
_______________________
*
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
McKEE, Circuit Judge.
Ralph Suny appeals the order of the District Court denying the habeas corpus
petition he filed pursuant to 28 U.S.C. § 2254. He contends that his trial counsel was
ineffective for two reasons: (1) counsel failed to object to a jury instruction that did not
explain that a person can be guilty of a single conspiracy to commit multiple crimes, and
(2) counsel failed to adequately investigate alibi witness testimony. For the reasons that
follow, we will affirm.
I1
Ralph Suny was charged in Pennsylvania state court with eight counts of burglary,
and eight counts of conspiracy to commit burglary and related offenses. The charges arise
from a total of eight home invasions that occurred between August and September of
2003.
At trial, the judge gave jury instructions explaining the elements of conspiracy in
general, but did not explain that a person can be guilty of a single conspiracy to commit
multiple crimes. Suny’s counsel did not request any such instruction and did not object to
the instruction that was given. The jury convicted Suny of one count of first degree
burglary, one count of second degree burglary, three counts of conspiracy to commit
burglary, and one count of driving under the influence.
1
Because we write primarily for the parties who are familiar with this case, we set forth
only those facts necessary to our conclusion.
2
After sentencing, Suny moved for a new trial. After he was appointed new
counsel, Suny claimed, among other things, that his trial counsel was ineffective for
failing to investigate and present the alibi witness testimony of his mother and aunt. The
trial court held a hearing on that motion and heard Suny’s family’s testimony as well as
that of both of Suny’s trial attorneys. The court concluded that Suny’s mother and aunt’s
claims that Suny’s attorneys ignored their alibi information and failed to adequately
investigate “lacked credibility.”2 Rather, the court credited Suny’s attorneys’ testimony
that they conducted a thorough investigation of any potential alibi testimony, and that
Suny’s mother and aunt never made the attorneys aware of their potential alibi evidence.3
Based on these findings, the court concluded that “trial counsel was unaware of the
existence of the proffered alibi testimony, and cannot be found ineffective for failing to
call these witnesses.”4
Suny appealed to the Superior Court of Pennsylvania. His claims there included
the ineffectiveness of trial counsel for failing to present alibi testimony. The Superior
Court rejected Suny’s claims, concluding that because the record contained “ample
factual support” for the trial court’s conclusion that Suny’s attorneys had done a thorough
investigation into alibi witness testimony, “there [was] no basis upon which [the] Court
[could] disturb the findings of the trial court that [the attorneys] had not been ineffective
2
J.A. at 92–93; Commonwealth v. Suny (Suny I), Nos. 6903-03, 6906-03, 6915-03, slip
op. at 22–23 (Del. Cty. Com. Pl. June 27, 2005).
3
J.A. at 86–96; Suny I, slip op. at 16–26.
4
J.A. 96; Suny I, slip op. at 26.
3
in failing to produce alibi testimony.”5 The Pennsylvania Supreme Court denied Suny’s
request for appeal.6
Thereafter, Suny filed a pro se petition for post-conviction relief pursuant to
Pennsylvania’s Post Conviction Relief Act (“PCRA”), alleging thirteen errors. Among
the errors listed, Suny claimed that the jury instruction on conspiracy was faulty under
state law. Suny also generally claimed that his counsel was ineffective. However, he did
not explicitly present the claim that his trial counsel was ineffective for failing to object
to the conspiracy charge. The closest Suny got to articulating the ineffectiveness claim he
now argues is a statement in his PCRA brief that he was eligible for relief due to
“[i]neffective assistance of counsel which, in the circumstances of the particular case, so
undermined the truth-determining process that no reliable adjudication of guilt or
innocence could have taken place.”7 Suny went on to state that appellate counsel “failed
to appeal issues to the highest courts,” referencing Part A and B of his PCRA brief.8 Part
A of Suny’s brief, entitled “ALL ISSUES,” included an outline of his claim that the jury
instructions were deficient for failure to include an explanation of single conspiracy and
stated that appellate counsel “failed to argue illegal conviction of MULTIPLE
CRIMINAL CONSPIRACY CHARGES.”9
5
J.A. at 119–21; Commonwealth v. Suny (Suny II), 915 A.2d 151 (Pa. Super. Ct. 2006)
(unpublished table decision).
6
Commonwealth v. Suny (Suny III), 927 A.2d 624 (Pa. 2007).
7
J.A. at 128.
8
J.A. at 129.
9
J.A. at 142.
4
Suny’s appointed PCRA counsel moved to withdraw because he concluded that
Suny’s claims lacked merit.10 In PCRA counsel’s “no merit” letter, he outlined the issues
in Suny’s PCRA brief but did not articulate Suny’s current claim of ineffective assistance
of counsel for failure to object to the instruction. The PCRA court granted the motion to
withdraw and dismissed Suny’s petition without a hearing.11
Suny appealed. This time, however, he did clearly articulate his ineffective
assistance claim based on the allegedly faulty conspiracy instruction.12 The Superior
Court affirmed the PCRA court’s dismissal of Suny’s petition, holding that his ineffective
assistance claim was waived under Pennsylvania law because Suny failed to raise it in his
brief or PCRA petition.13 The Pennsylvania Supreme Court denied Suny’s petition for
allowance of appeal.14
Suny then filed a pro se petition for habeas relief, raising seven constitutional
claims, all of which were rejected by the District Court.15 We granted a certificate of
appealability on five issues, two of which Suny withdrew in his reply brief.16 Thus the
following issues articulated in the certificate of appealability remain before us: (1)
10
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
11
Commonwealth v. Suny (Suny IV), Nos. 6903-03, 6906-03, 6915-03, slip op. 198, 198
(Del. Cty. Com. Pl. June 23, 2008).
12
J.A. at 148 (“Was the attorney ineffective for not raising the issue of multiple
conspiracy vs. single conspiracy[?]”).
13
J.A. at 155–56; Commonwealth v. Suny (Suny V), 987 A.2d 825 (Pa. Super. Ct. 2009)
(unpublished table decision).
14
Commonwealth v. Suny (Suny VI), 15 A.3d 67 (Pa. 2011).
15
Suny v. Pennsylvania (Suny VII), No. CIV.A. 12-1469, 2014 WL 772439, at *1 (E.D.
Pa. Feb. 27, 2014).
16
Reply Br. at 11 n.2.
5
whether the trial court erred in failing to instruct the jury that it could find him guilty for
a single conspiracy even though multiple conspiracies were charged, (2) whether trial and
appellate counsel were ineffective for failing to request the instruction or challenge its
absence, and (3) whether trial counsel was ineffective for failing to investigate and
present the alibi witness testimony of Suny’s mother and aunt. Because the record
supports the trial court’s finding that Suny did not inform his trial counsel of potential
alibi witnesses, we need only discuss that claim briefly. We will address the first two
claims together as they raise the same issue.17
II
Suny’s appeal is governed by the Anti-Terrorism and Effective Death Penalty Act
of 1996 (AEDPA). Under AEDPA, a federal court may not grant a writ of habeas corpus
unless the petitioner “has exhausted the remedies available in the courts of the State.”18
To do so, “the petitioner must fairly present all federal claims to the highest state court
before bringing them in federal court.”19 If claims are fairly presented—and therefore
“exhausted” in state court—federal courts may grant habeas relief only if a state court’s
adjudication “resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of
the United States[,]” or “resulted in a decision that was based on an unreasonable
17
The District Court had jurisdiction under 28 U.S.C. §§ 2241 and 2254. We have
appellate jurisdiction to review the certified issues under 28 U.S.C. § 2253. Because the
District Court held no evidentiary hearing, our review is plenary. Simmons v. Beard, 590
F.3d 223, 231 (3d Cir. 2009).
18
28 U.S.C. § 2254(b)(1)(A).
19
Stevens v. Del. Corr. Ctr., 295 F.3d 361, 369 (3d Cir. 2002); 28 U.S.C. § 2254(b).
6
determination of the facts in light of the evidence presented in the State court
proceeding.”20
Even if a petitioner asserted a claim in state court, however, a federal court may
not review it on the merits where a state court’s denial of relief rests on a violation of a
state procedural rule, provided that the state rule “is independent of the federal question
and adequate to support the judgment.”21 Such claims are procedurally defaulted, and we
are unable to review them unless the petitioner can show cause and prejudice to excuse
the default.22
Under this framework, we first consider whether Suny is procedurally barred from
pursuing his claim that trial counsel was ineffective for failing to contemporaneously
object to the trial court’s conspiracy instruction.
A
Suny argues that the evidence in his case supported a jury finding of a single
conspiracy rather than multiple conspiracies. Put another way, Suny argues that the jury
could have found based on the evidence that the burglaries were conducted pursuant to a
single agreement to commit multiple burglaries instead of multiple agreements to commit
each burglary. Had the jury found that Suny had agreed only to a single conspiracy, his
sentence may well have been less than he received. Moreover, there is evidence to
support such a finding: The three burglaries that led to Suny’s only convictions were
20
28 U.S.C. § 2254(d); see also Harrington v. Richter, 562 U.S. 86, 100–02 (2011).
21
Nara v. Frank, 488 F.3d 187, 199 (3d Cir. 2007).
22
United States v. Frady, 456 U.S. 152, 167–68 (1982).
7
committed by the same conspirators, and took place only three nights apart and within a
half mile of each other.23 Suny therefore claims that under Pennsylvania law, he was
entitled to an instruction that informed the jury that he could be convicted of a single
conspiracy had his counsel requested one.24 Thus, according to Suny, he was prejudiced
under the Strickland v. Washington25 standard by his trial counsel’s failure to object to
the instruction as given. However, we are unable to consider the merits of Suny’s
ineffective assistance of trial counsel claim because he waived it in state court.26
Pennsylvania law requires that a defendant convicted at trial present any
ineffective assistance of counsel claims in his or her initial PCRA petition—or else the
claims are waived.27 All PCRA claims must be explicitly raised in the petition to avoid
such a waiver.28 Suny argues that he did adequately raise his ineffective assistance claim
23
We take no position as to whether Suny was entitled to such an instruction under
Pennsylvania law as “federal habeas corpus relief does not lie for errors of state law.”
Lewis v. Jeffers, 497 U.S. 764, 780 (1991). Thus, our inquiry here is limited to whether
Suny is entitled to relief based on his claim that his trial counsel was ineffective for
failing to request such an instruction.
24
See Commonwealth v. Andrews, 768 A.2d 309, 316 (Pa. 2001); 18 Pa. Stat. and Cons.
Stat. Ann. § 903(c) (“If a person conspires to commit a number of crimes, he is guilty of
only one conspiracy so long as such multiple crimes are the object of the same agreement
or continuous conspiratorial relationship.”).
25
466 U.S. 668 (1984).
26
To the extent that Suny seeks to recast his state law claim for relief as a constitutional
due process claim, See Appellant’s Br. at 28, Reply Br. at 7–8, this claim is also
procedurally defaulted and unreviewable for the same reasons as Suny’s ineffective
assistance of trial counsel claim.
27
Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002).
28
Pa. R. Crim. P. 902(B) (“Each ground relied upon in support of the relief requested
shall be stated in the petition. Failure to state such a ground in the petition shall preclude
the defendant from raising that ground in any proceeding for post-conviction collateral
relief.”); Pa. R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot
8
that he pursues here—specifically, that his trial counsel was deficient for failing to object
to the jury instructions on conspiracy. First, Suny notes that he indicated on his petition
that he was entitled to relief, in part, because of “[i]neffective assistance of counsel
which, in the circumstances of the particular case, so undermined the truth determining
process that no reliable adjudication of guilt or innocence could have taken place.”29
Second, Suny notes that he wrote that appellate counsel “failed to appeal issues to the
highest courts,” referencing Parts A and B of his brief.30 Part A of Suny’s brief, entitled
“ALL ISSUES,” argued, among other things, that the jury instructions were deficient
because they failed to include an explanation of single conspiracy.31 Thus, Suny argues,
he adequately raised the issue he claims here and it was not waived.
However, even affording Suny the liberal construction afforded to all pro se
litigants,32 the extremely general and overbroad statements in his PCRA petition and brief
do not come close to providing the necessary factual and legal underpinnings to present
the specific ineffectiveness claim he argues here.33 Accordingly, Suny’s petition was not
sufficiently clear to allow his appointed PCRA counsel or the PCRA court to understand
be raised for the first time on appeal.”). See also 42 Pa. Stat. and Cons. Stat. Ann. § 9543
(“To be eligible for [post-conviction] relief . . ., petitioner must plead and prove by a
preponderance of the evidence . . . [t]hat the conviction or sentence resulted from one or
more of the following: . . . Ineffective assistance of counsel which, in the circumstances
of the particular case, so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.” (emphasis added)).
29
Appellant’s Br. at 32; J.A. at 128.
30
Appellant’s Br. at 32; J.A. at 129.
31
J.A. at 129, 142.
32
Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013).
33
See id. at 245.
9
that he was raising the ineffectiveness claim argued here. Suny’s counsel only outlined
his claim that appellate counsel—not trial counsel—was deficient for failing to pursue the
state law claim on appeal. The PCRA court responded only to the argument that appellate
counsel was ineffective.34 The Superior Court affirmed, holding that “neither Appellant’s
PCRA petition nor his brief makes any claim of ineffectiveness for [counsel’s] failure to
[object to the jury conspiracy charge], nor of post trial counsel’s failure to raise the issue
of trial counsel’s omission on appeal. Accordingly, both claims are waived.”35 In sum,
Suny’s failure to adequately raise this issue before the PCRA court precluded him from
raising it subsequently on appeal before the Pennsylvania Superior Court. Consequently,
the claim was dismissed on procedural grounds and not considered on its merits.
Such a dismissal on the state procedural grounds constitutes an independent and
adequate state ground upon which to uphold a petitioner’s conviction.36 As discussed
above, procedurally defaulted claims that rest on independent and adequate state grounds
are ordinarily unreviewable on federal collateral review.37
34
Suny IV, slip op. at 201–02.
35
J.A. at 156.
36
A state procedural rule is “independent” if it is separate from the federal issue. That
requirement is met here. Cabrera v. Barbo, 175 F.3d 307, 313 (3d Cir. 1999). A state
procedural rule is “adequate” if it was “firmly established and regularly followed” at the
time of the alleged procedural default. Ford v. Georgia, 498 U.S. 411, 424 (1991). This
requirement is also met here. Based on Rule of Criminal Procedure 902(B) and Rule of
Appellate Procedure 302(a), Pennsylvania courts routinely decline to consider on appeal
an argument that was not explicitly raised in the PCRA petition. See, e.g., Commonwealth
v. Bond, 819 A.2d 33, 39 (Pa. 2002); Commonwealth v. Bracey, 795 A.2d 935, 940 n.4
(Pa. 2001).
37
Coleman v. Thompson, 501 U.S. 722, 731 (1991).
10
Suny argues that the state court misapplied state procedural rules and incorrectly
concluded that his claim was waived. However, federal courts generally will not consider
whether the state court properly applied its own default rule to the petitioner’s facts.38 In
any event, we agree with the Superior Court that under Pennsylvania law, Suny’s PCRA
brief did not adequately raise the ineffective assistance claim he now attempts to raise
and he therefore waived the claim.39 Therefore, Suny’s ineffective assistance claim based
38
Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the province of a federal
habeas court to reexamine state-court determinations on state-law questions.”). See also
Sharpe v. Bell, 593 F.3d 372, 377 (4th Cir. 2010) (“A federal habeas court does not have
license to question a state court’s finding of procedural default or to question whether the
state court properly applied its own law.” (internal citation and quotation marks
omitted)); Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1999) (“Federal habeas courts
lack jurisdiction, however, to review state court applications of state procedural rules.”);
Schleeper v. Groose, 36 F.3d 735, 737 (8th Cir. 1994) (“[A] state’s misapplication of its
own procedural rule is not cause for default.”); Barksdale v. Lane, 957 F.2d 379, 383–84
(7th Cir. 1992) (“[A] federal court sitting in habeas corpus is required to respect a state
court’s finding of waiver or procedural default under state law. Federal courts do not sit
to correct errors made by state courts in the interpretation and application of state law.”);
Richardson v. Thigpen, 883 F.2d 895, 898 (11th Cir. 1989), cert. denied, 492 U.S. 934
(1989) (“[Petitioner] argues that the state misapplied its own procedural default rules; this
does not constitute cause within the meaning of Strickland.”).
39
See Bond, 819 A.2d at 39–40 (holding that “boilerplate” and “bald allegation[s]” of
ineffective assistance of counsel “tacked on to waived claims of trial court error” were
insufficient to avoid waiving the claims); Bracey, 795 A.2d at 940 n.4 (concluding that a
PCRA petition that “tack[ed] a on sentence that trial and appellate counsel were
ineffective for failing to raise and/or properly litigate the underlying claims” was an
“undeveloped argument, which fail[ed] to meaningfully discuss and apply the standard
governing the review of ineffectiveness claims” and therefore the petitioner “[did] not
satisfy [his] burden of establishing that he is entitled to any relief”).
11
on counsel’s failure to object to the conspiracy jury instruction is procedurally defaulted
and the merits of the claim are unreviewable here.40
B
Next, Suny argues that his trial counsel was ineffective for failing to adequately
investigate and present alibi witness testimony. We agree with the District Court that
there was “nothing unreasonable in the state courts’ treatment of this claim.”41 Both the
Court of Common Pleas and Superior Court reasonably found, after a careful review of
the evidence, that Suny’s attorneys’ testimony was more credible than Suny’s family’s
claims that counsel ignored their potential alibi testimony.42 Therefore, under the
Strickland standard, the state courts reasonably concluded that Suny’s counsel’s
investigation was adequate and that the choice not to elicit Suny’s family’s unhelpful
testimony at trial was not ineffective assistance.
III
For the reasons set forth above, we will affirm the judgment of the District Court
denying a writ of habeas corpus.
40
We note that under the Supreme Court’s recent case, Martinez v. Ryan, 566 U.S. 1
(2012), ineffective assistance of trial counsel claims procedurally defaulted under state
law may be reviewable on habeas if the prisoner’s collateral review counsel is found to
have been ineffective for failing to raise them. Id. at 14. However, Suny has not argued
that his appointed PCRA counsel was ineffective and we therefore do not consider
Martinez’s application here.
41
Suny VII, 2014 WL 772439, at *18.
42
Suny I, slip op. at 14–26; Suny II, slip op. at 10–12.
12